1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Martice Deshawn Wallace, No. CV-17-04126-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Timothy A Jones, et al.,
13 Defendants. 14 15 Pending before the Court is pro se Plaintiff’s Supplemental Motion for Issuance of 16 Subpoenas (Doc. 243).1 Defendants have filed a Response, which does not object to the 17 Motion. 18 I. Background 19 This case arises from an encounter Plaintiff had with several Phoenix Fire 20 Department firefighters on the night of June 15, 2017. Plaintiff alleges that, after accepting 21 and then declining treatment for some injuries, several firefighters used excessive force on 22 him in violation of his constitutional rights. (Doc. 50 at 5). The events that gave rise to 23 this case also gave rise to a separate criminal matter where, on September 25, 2018, 24 Plaintiff was convicted of aggravated assault using a deadly weapon or dangerous 25 instrument on two firefighters who have since been dismissed as Defendants from this 26 matter. (Doc. 167 at 8). 27 A Jury Trial has been set to determine whether Defendants used excessive force on
28 1 The Court also notes that Plaintiff, who is currently incarcerated, has been approved to proceed in forma pauperis in this matter. (Doc. 7). 1 Plaintiff. Plaintiff now requests the Court order the U.S. Marshals to serve fifteen 2 witnesses for the Trial. (Doc. 243). 3 II. Legal Standards 4 Under General Order 18-19, any self-represented litigant wishing to serve a 5 subpoena must file a motion that (1) is in writing, (2) attaches a copies of the proposed 6 subpoenas, (3) sets forth the name and address of the witnesses to be subpoenaed, and (4) 7 states with particularity the reasons for seeking the testimony. 8 Plaintiff requests that the U.S. Marshals Service serve the subpoenas. The Federal 9 Rules permit service by the U.S. Marshals in certain circumstances. See Fed. R. Civ. P. 10 4(c)(3) (requiring service of complaint and process by a U.S. Marshal when plaintiff is 11 authorized to proceed in forma pauperis); 28 U.S.C. 1915(d); Fed. R. Civ. P. 45(b) advisory 12 committee note to 1991 amendment (noting that U.S. Marshals may still serve subpoenas). 13 Because personal service of the subpoenas is required, “[d]irecting the Marshal’s Office to 14 expend its resources personally serving a subpoena is not taken lightly by the court.” 15 Jackson v. Paramo, 2018 WL 4537746, at *1 (S.D. Cal. Sept. 21, 2018) (quoting Alexander 16 v. California Dept. of Corrections, 2010 WL 5114931, at *3 (E.D. Cal., Dec. 9, 2010)). 17 Courts must also be vigilant to ensure that non-parties are not burdened with excessive or 18 unusual expenses in order to comply with a subpoena. See Jackson v. Paramo, 2018 WL 19 4537746, at *1 (S.D. Cal. Sept. 21, 2018). 20 Federal Rule of Civil Procedure 45 governs subpoenas. Under the Rule, an 21 individual may only be commanded through a subpoena to attend a trial who is: 22 (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or 23 (B) within the state where the person resides, is employed, or regularly 24 transacts business in person, if the person (i) is a party or a party's officer; or 25 (ii) is commanded to attend a trial and would not incur substantial 26 expense. 27 Fed R. Civ. P. 45(c). 28 / / / 1 III. Discussion 2 The Court proceeds by discussing each individual or group of individuals whom 3 Plaintiff wishes to serve. 4 a. Defendants & City of Phoenix Employees 5 Plaintiff represents that Defendants’ counsel has agreed to accept service for all 6 Defendants and all City of Phoenix employees. (Doc. 239).2 These individuals include 7 Defendants Timothy Jones, Scott Alfred, and Keith Wagner, as well as non-parties Todd 8 Riggs, Daniel Warren, Michael Ong, and Nick Calandra. (Doc. 243 at 2–4). As to these 9 individuals, the Court will grant Plaintiff’s request. The Court orders the U.S. Marshalls 10 Service to serve Defendant’s counsel, who will accept service for the above-mentioned 11 individuals, at 200 W. Washington St., Suite 1300, Phoenix, AZ 85003. 12 b. Tara Ridgeway 13 Next, Plaintiff requests that the Court order the U.S. Marshalls serve Tara 14 Ridgeway, who Plaintiff represents is a psychologist capable of testifying about Plaintiff’s 15 psychology injuries. (Doc. 243 at 4). Plaintiff provides two addresses for Ms. Ridgeway. 16 One address is in Kentucky and the other is in Arizona, at the Arizona Department of 17 Corrections. The Court will grant Plaintiff’s request to serve Ms. Ridgeway in Arizona 18 under the assumption that she is still an employee of the Arizona Department of 19 Corrections. However, to the extent that Ms. Ridgeway lives in Kentucky and is no longer 20 employed in Arizona or regularly conducts business here, Rule 45 does not permit service 21 on her. Therefore, the Court will order the U.S. Marshalls Service to attempt to serve Tara 22 Ridgeway at the Arizona Department of Corrections, 1601 W. Jefferson, Phoenix, AZ 23 85007. 24 / / / 25 2 Defendants state their counsel “will accept service of any issued subpoenas for any named 26 Defendant.” (Doc. 245 at 2). However, Defendants do not comment on whether their counsel may accept service on behalf of the non-party City of Phoenix employees. In the 27 event Defendants counsel is not authorized to accept service for these city of Phoenix employees, the Court will Order the U.S. Marshalls to serve Todd Riggs, Daniel Warren, 28 Michael Ong, at 120 S. 12th Street, Phoenix, AZ 85034; and to serve Nick Calandra at 1717 E. Grant St., Suite 100, Phoenix, AZ 85034. 1 c. Chris Farmer 2 Plaintiff requests the U.S. Marshalls serve Chris Farmer with a subpoena. (Id.) 3 Plaintiff claims Mr. Farmer is an “investigator who worked on an unrelated case involving 4 an unlawful seizure and use of excessive force” by the Phoenix Fire Department. (Id. at 5 5). Plaintiff argues this testimony will be admissible under Federal Rule of Evidence 406 6 as evidence of an organization’s habit or routine practice. Plaintiff has previously sought 7 to introduce evidence of other unrelated incidents of excessive force by the Phoenix Fire 8 Department, and those requests have been denied. (Docs. 203; 242). 9 “Evidence of a person’s habit or an organization’s routine practice may be admitted 10 to prove that on a particular occasion the person or organization acted in accordance with 11 the habit or routine practice.” Fed. R. Evid. 406. Plaintiff does not allege that Mr. Farmer 12 will be testifying to the particular habits of the individual Defendants in this case. 13 Therefore, Plaintiff fails to show why Mr. Farmer’s testimony would be relevant. See Fed. 14 R. Evid. 403. Furthermore, “[e]vidence of any other crime, wrong, or act is not admissible 15 to prove a person’s character in order to show that on a particular occasion the person acted 16 in accordance with the character.” Fed. R. Evid. 404(b)(1). Plaintiff is admonished that 17 he may not mention unrelated incidents involving alleged misconduct by the Phoenix Fire 18 Department or its employees in the trial. 19 Because Plaintiff has not shown how Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Martice Deshawn Wallace, No. CV-17-04126-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Timothy A Jones, et al.,
13 Defendants. 14 15 Pending before the Court is pro se Plaintiff’s Supplemental Motion for Issuance of 16 Subpoenas (Doc. 243).1 Defendants have filed a Response, which does not object to the 17 Motion. 18 I. Background 19 This case arises from an encounter Plaintiff had with several Phoenix Fire 20 Department firefighters on the night of June 15, 2017. Plaintiff alleges that, after accepting 21 and then declining treatment for some injuries, several firefighters used excessive force on 22 him in violation of his constitutional rights. (Doc. 50 at 5). The events that gave rise to 23 this case also gave rise to a separate criminal matter where, on September 25, 2018, 24 Plaintiff was convicted of aggravated assault using a deadly weapon or dangerous 25 instrument on two firefighters who have since been dismissed as Defendants from this 26 matter. (Doc. 167 at 8). 27 A Jury Trial has been set to determine whether Defendants used excessive force on
28 1 The Court also notes that Plaintiff, who is currently incarcerated, has been approved to proceed in forma pauperis in this matter. (Doc. 7). 1 Plaintiff. Plaintiff now requests the Court order the U.S. Marshals to serve fifteen 2 witnesses for the Trial. (Doc. 243). 3 II. Legal Standards 4 Under General Order 18-19, any self-represented litigant wishing to serve a 5 subpoena must file a motion that (1) is in writing, (2) attaches a copies of the proposed 6 subpoenas, (3) sets forth the name and address of the witnesses to be subpoenaed, and (4) 7 states with particularity the reasons for seeking the testimony. 8 Plaintiff requests that the U.S. Marshals Service serve the subpoenas. The Federal 9 Rules permit service by the U.S. Marshals in certain circumstances. See Fed. R. Civ. P. 10 4(c)(3) (requiring service of complaint and process by a U.S. Marshal when plaintiff is 11 authorized to proceed in forma pauperis); 28 U.S.C. 1915(d); Fed. R. Civ. P. 45(b) advisory 12 committee note to 1991 amendment (noting that U.S. Marshals may still serve subpoenas). 13 Because personal service of the subpoenas is required, “[d]irecting the Marshal’s Office to 14 expend its resources personally serving a subpoena is not taken lightly by the court.” 15 Jackson v. Paramo, 2018 WL 4537746, at *1 (S.D. Cal. Sept. 21, 2018) (quoting Alexander 16 v. California Dept. of Corrections, 2010 WL 5114931, at *3 (E.D. Cal., Dec. 9, 2010)). 17 Courts must also be vigilant to ensure that non-parties are not burdened with excessive or 18 unusual expenses in order to comply with a subpoena. See Jackson v. Paramo, 2018 WL 19 4537746, at *1 (S.D. Cal. Sept. 21, 2018). 20 Federal Rule of Civil Procedure 45 governs subpoenas. Under the Rule, an 21 individual may only be commanded through a subpoena to attend a trial who is: 22 (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or 23 (B) within the state where the person resides, is employed, or regularly 24 transacts business in person, if the person (i) is a party or a party's officer; or 25 (ii) is commanded to attend a trial and would not incur substantial 26 expense. 27 Fed R. Civ. P. 45(c). 28 / / / 1 III. Discussion 2 The Court proceeds by discussing each individual or group of individuals whom 3 Plaintiff wishes to serve. 4 a. Defendants & City of Phoenix Employees 5 Plaintiff represents that Defendants’ counsel has agreed to accept service for all 6 Defendants and all City of Phoenix employees. (Doc. 239).2 These individuals include 7 Defendants Timothy Jones, Scott Alfred, and Keith Wagner, as well as non-parties Todd 8 Riggs, Daniel Warren, Michael Ong, and Nick Calandra. (Doc. 243 at 2–4). As to these 9 individuals, the Court will grant Plaintiff’s request. The Court orders the U.S. Marshalls 10 Service to serve Defendant’s counsel, who will accept service for the above-mentioned 11 individuals, at 200 W. Washington St., Suite 1300, Phoenix, AZ 85003. 12 b. Tara Ridgeway 13 Next, Plaintiff requests that the Court order the U.S. Marshalls serve Tara 14 Ridgeway, who Plaintiff represents is a psychologist capable of testifying about Plaintiff’s 15 psychology injuries. (Doc. 243 at 4). Plaintiff provides two addresses for Ms. Ridgeway. 16 One address is in Kentucky and the other is in Arizona, at the Arizona Department of 17 Corrections. The Court will grant Plaintiff’s request to serve Ms. Ridgeway in Arizona 18 under the assumption that she is still an employee of the Arizona Department of 19 Corrections. However, to the extent that Ms. Ridgeway lives in Kentucky and is no longer 20 employed in Arizona or regularly conducts business here, Rule 45 does not permit service 21 on her. Therefore, the Court will order the U.S. Marshalls Service to attempt to serve Tara 22 Ridgeway at the Arizona Department of Corrections, 1601 W. Jefferson, Phoenix, AZ 23 85007. 24 / / / 25 2 Defendants state their counsel “will accept service of any issued subpoenas for any named 26 Defendant.” (Doc. 245 at 2). However, Defendants do not comment on whether their counsel may accept service on behalf of the non-party City of Phoenix employees. In the 27 event Defendants counsel is not authorized to accept service for these city of Phoenix employees, the Court will Order the U.S. Marshalls to serve Todd Riggs, Daniel Warren, 28 Michael Ong, at 120 S. 12th Street, Phoenix, AZ 85034; and to serve Nick Calandra at 1717 E. Grant St., Suite 100, Phoenix, AZ 85034. 1 c. Chris Farmer 2 Plaintiff requests the U.S. Marshalls serve Chris Farmer with a subpoena. (Id.) 3 Plaintiff claims Mr. Farmer is an “investigator who worked on an unrelated case involving 4 an unlawful seizure and use of excessive force” by the Phoenix Fire Department. (Id. at 5 5). Plaintiff argues this testimony will be admissible under Federal Rule of Evidence 406 6 as evidence of an organization’s habit or routine practice. Plaintiff has previously sought 7 to introduce evidence of other unrelated incidents of excessive force by the Phoenix Fire 8 Department, and those requests have been denied. (Docs. 203; 242). 9 “Evidence of a person’s habit or an organization’s routine practice may be admitted 10 to prove that on a particular occasion the person or organization acted in accordance with 11 the habit or routine practice.” Fed. R. Evid. 406. Plaintiff does not allege that Mr. Farmer 12 will be testifying to the particular habits of the individual Defendants in this case. 13 Therefore, Plaintiff fails to show why Mr. Farmer’s testimony would be relevant. See Fed. 14 R. Evid. 403. Furthermore, “[e]vidence of any other crime, wrong, or act is not admissible 15 to prove a person’s character in order to show that on a particular occasion the person acted 16 in accordance with the character.” Fed. R. Evid. 404(b)(1). Plaintiff is admonished that 17 he may not mention unrelated incidents involving alleged misconduct by the Phoenix Fire 18 Department or its employees in the trial. 19 Because Plaintiff has not shown how Mr. Farmer’s testimony would be admissible, 20 the Court denies Plaintiff’s request to order the U.S. Marshalls to serve a subpoena on him. 21 d. Armando 22 Plaintiff requests service upon an individual identified only as “Armando (owner of 23 Armando’s Tire Shop).” (Doc. 243 at 5). Plaintiff claims that Armando witnessed the 24 events giving rise to this action. (Id.) 25 It is not clear to the Court that this witness was identified at the final pretrial 26 conference, the Court will deny Plaintiff’s request to subpoena this individual without 27 prejudice. See United States v. Lummi Indian Tribe, 841 F.2d 317, 320 (9th Cir. 1988) 28 (“The trial judge may exclude evidence not identified in accordance with the pretrial order 1 when the party seeking to introduce the evidence offers no justification for delay.”). The 2 parties’ Joint Proposed Final Pretrial Order lists an individual by the name of Armando 3 Garcia as a witness who “may” be called to testify about “Use of Force by P.F.D.” (Doc. 4 210 at 7). This description of Mr. Garcia’s testimony differs from other fact witnesses who 5 would be offering a “Version of events.” (Id. at 6). It seems, therefore, that the Armando 6 Plaintiff now seeks to be subpoenaed is different from Armando Garcia. Therefore, the 7 Court denies Plaintiff’s request without prejudice and with leave to refile if Plaintiff can 8 show Armando Garcia is the individual whom he wishes to subpoena. 9 e. Attorneys Involved in Plaintiff’s Criminal Case 10 Plaintiff argues that Defendants “intend to use Plaintiff’s 2018 conviction to bolster 11 their case and prejudice the Plaintiff. . . .” (Doc. 243 at 6). In order to “level the playing 12 field” Plaintiff seeks to serve subpoenas on several attorneys who are alleged to be involved 13 with Plaintiff’s prior criminal conviction. He aims to expose “the means employed by the 14 ‘system’ to obtain that conviction . . . .” (Id.) First, Plaintiff seeks to subpoena Jana 15 Sorensen, the prosecutor in the prior criminal case, so to “elicit testimony regarding the 16 means employed to obtain the indictment against him and thereby test the ‘system’ starting 17 from the top.” (Doc. 243 at 6). He also seeks to subpoena Burgess McCowan, Kyle Green, 18 and Amy Bain, who the Court infers to be former counsel for Plaintiff. (Id. at 7–8). 19 Plaintiff seeks their testimony to demonstrate ineffective assistance of counsel. (Id.) 20 The testimony Plaintiff seeks to admit from these individuals is not relevant. Both 21 the means by which the prosecutor obtained the criminal conviction and the performance 22 of Plaintiff’s former counsel in the prior criminal matter are not facts of consequence in 23 determining whether Defendants used excessive force against Plaintiff. See Fed. R. Evid. 24 401. 25 As to the introduction of the 2018 conviction into evidence, the Court has yet to rule 26 whether such evidence is indeed admissible. As the Court has previously stated, “evidence 27 of the conviction may be properly used to impeach Plaintiff’s testimony regarding how 28 events unfolded. Moreover, the facts underlying the 2018 aggravated assault conviction 1 may also be admissible for other purposes, such as to show Plaintiff’s ‘proof of motive, 2 opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or 3 accident.’” (Doc. 197 at 5) (quoting Fed. R. Evid. 404(b)(2)). If, at trial, Plaintiff believes 4 evidence is unduly prejudicial, he may move to exclude it pursuant to Federal Rule of 5 Evidence 403. 6 f. Charles Morin 7 Finally, Plaintiff seeks to subpoena Charles Morin, “a Phoenix Police commander 8 with the Professional Standards Bureau.” (Doc. 243 at 9). Plaintiff seeks Mr. Morin’s 9 testimony in regards “to the acts and omissions of the arresting officers . . . .” (Id.) Again, 10 this testimony is not relevant to the question of whether Defendants, who are Phoenix 11 firefighters, used excessive force, and it will not be permitted at trial. See Fed. R. Evid. 12 401. Therefore, Plaintiff’s request to subpoena Mr. Morin is denied. 13 Accordingly, 14 IT IS HEREBY ORDERED that Plaintiff’s Motion for Issuance of Subpoenas 15 (Doc. 243) is granted in part and denied in part. 16 IT IS FURTHER ORDERED that the U.S. Marshalls Service shall attempt to 17 serve the following individuals with the corresponding subpoenas attached to Plaintiff’s 18 Motion (Doc. 243). 19 - Timothy Jones: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003 20 - Scott Alfred: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003 21 - Keith Wagner: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003 22 - Todd Riggs: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003 23 - Daniel Warren: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003, or, 24 alternatively, 120 S. 12th Street, Phoenix, AZ 85034 25 - Michael Ong: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003 or, 26 alternatively, 120 S. 12th Street, Phoenix, AZ 85034 27 - Nick Calandra: 200 W. Washington St., Suite 1300, Phoenix, AZ 85003 or, 28 alternatively, 1717 E. Grant St., Suite 100, Phoenix, AZ 85034 1 - Tara Ridgeway: 1601 W. Jefferson, Phoenix, AZ 85007 2 IT IS FINALLY ORDERED that Plaintiff's remaining requests are denied, as 3 || stated herein. 4 Dated this 25th day of January, 2022. 5 6 Do ee 7 norable'DiangJ4. Hurfetewa g United States District Fudge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
-7-